Member of National Convention Convening Work Committee Deputy Attorney-General Dr Tun Shin reads out the clarifications of Chairman of NCCWC
Mr Chairman,
At the plenary sessions held on 13 November 2006, the Work Committee chairman explained the detailed basic principles that should be adopted for the Chapter “General Provisions”. Regarding the Work Committee chairman’s explanation, the delegate groups:
- the Delegate Group of National Races,
- the Delegate Group of Peasants,
- the Delegate Group of Workers,
- the Delegate Group of Intellectuals and Intelligentsia,
- the Delegate Group of State Service Personnel,
- the Delegate Group of Other Invited Persons, and
- the political parties from the Delegate Group of Political Parties:
- the National Unity Party;
- the Union Pa-O National Organization;
- the Shan State Kokang Democratic Party;
- Mro or Khami National Solidarity Organization;
- the Lahu National Development Party;
- the Union Kayin League;
- the Kokang Democracy and Unity Party;
- the Wa National Development Party;, and
- representatives of political parties from the Delegate Group of Representatives-Elect, and three Independent Representatives-Elect including Dr Hmu Htan, and six Independent Representatives-Elect including U Tin Win held group-wise discussions, and suggested that the detailed basic principles for the Chapter “General Provisions” should be adopted. The are:
1. This Constitution is the Basic Law of laws of the State.
2. Myanmar language is the official language.
3. The State fundamental principles are the guidelines to be followed by the legislative Hluttaws in enacting laws and interpreting provisions of the State Constitution and of other laws.
4. Interpretation of the preamble, articles, clauses, words and expressions contained in this Constitution shall be based only on Myanmar text.
5. Interpretation of the expressions of this Constitution should be referred to the existing Interpretation of Expressions Law.
6. A Myanmar manuscript of this Constitution shall be kept at the National Archives. The manuscript shall be conclusive evidence of the provisions of this Constitution.
7. In the interest of the State, the Union Government may permit— (a) Region or State government,
(b) a cooperative society, an organization or a person to run any of economic enterprises, which are prescribed to be operated solely by the Union Government, through a joint-venture system with the Union Government or under agreements.
8. The Union of Myanmar shall honour all legitimate obligations arising out of any treaties or agreements which before the commencement of this Constitution were in force between the Government of Myanmar and the Government of any other State, provided that such other State honours any reciprocal obligations towards the Union of Myanmar.
9. (a) Any proceedings relating to contracts or liabilities which might have been brought against the Government of the Union of Myanmar before this Constitution comes into force, may be brought against the Union Government.
(b) The Union of Myanmar may sue and may be sued by the name of the Union of Myanmar.
10. The Constitutional Tribunal shall consist of nine members including the chairman. The President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall select three members each who meet the following qualifications from among Hluttaw members or non-Hluttaw members:
(a) person who has attained the age of 50 years;
(b) person who possesses qualifications set for a Pyithu Hluttaw, other than restriction on age,
(c) person who possesses qualifications set for the Chief Justice and a Supreme Couret Justice, other than restriction on age;
(d) person who has political, administrative, economic and security outlooks.
(e) person who is loyal to the State and the people.
11. The list of three members each nominated by the President, the Pyithu Hluttaw Speaker and the Amyotha Hluttaw Speaker, and a member nominated for chairmanship of Constitutional Tribunal among the nine members shall be submitted to the Pyidaungsu Hluttaw for its approval.
12. The Pyidaungsu Hluttaw shall have no right to reject the persons nominated for members of the Constitutional Tribunal by the President unless it can prove the members disqualified.
13. The President may, in accord with the provisions of the State Constitution, have the right to nominate new members for the seats of Constitutional Tribunal that are still vacant due to failure to obtain agreement of the Pyidaungsu Hluttaw.
14. The President shall appoint the chairman and members of Constitutional Tribunal approved by the Pyidaungsu Hluttaw.
15. The term of the Constitutional Tribunal is five years, the same as that of the Pyidaungsu Hluttaw. However, the ongoing Constitutional Tribunal, on expiry of its term, shall continue to carry out its functions till the President forms a new Constitutional Tribunal under this Constitution.
16. A member of the Constitutional Tribunal:
(a) shall be deemed to have resigned from the Hluttaw concerned on the date of being appointed if he is a member of any Hluttaw.
(b) shall be deemed to have resigned from civil service in accord with civil service rules and regulations on the date of being appointed if he is a government employee.
(c) shall have no right to participate in activities of the political party concerned during tenure of membership starting from the date of being appointed if he is a member of a political party.
17. A member of the Constitutional Tribunal may have the right to submit his resignation to the President if he wishes to resign before expiry of his tenure due to a reason.
18. The President may appoint a new member in accord with the provisions of this Constitution if there is a vacancy in membership in the Constitutional Tribunal for a certain reason.
19. (a) A member of the Constitutional Tribunal can be blamed or impeached under any of the following reasons:
(1) treason;
(2) violation of any of the provisions of the Constitution;
(3) misbehaviour;
(4) incapability of discharging duties prescribed in the Constitution for a member of the Constitutional Tribunal;
(5) inefficient discharge of duties;
(b) If need arises to blame or impeach a member of the Constitutional Tribunal, it shall do so under the provisions prescribed in this Constitution set to blame or impeach the Chief Justice or a Supreme Court Justice.
20. The functions of the Constitutional Tribunal are as follows:
(a) to interpret provisions of the Constitution,
(b) to scrutinize whether or not laws enacted by the Pyidaungsu Hluttaw, the Region Hluttaws and the State Hluttaws and Self- Administered Areas are in conformity withthe Constitution,
(c) to scrutinize functions of executive authorities of Pyidaungsu, Regions, States and Self-Administered Areas are in conformity with the Constitution,
(d) to decide on disputes in connection with the Constitution between Pyidaungsu and regions, between Pyidaungsu and States, between Regions and States, among Regions, among States, and between Regions or States and Self-Administered Areas and among Self-Administered Areas themselves to perform other duties prescribed in the Constitution,
(e) to decide on disputes in connection with the rights and responsibilities of the Pyidaungsu and Regions; or States or Self- Administered Areas in implementing Union law by Regions, States or Self-Administered Areas,
(f) to scrutinize and decide on matters relating to Union territories informed by the President,
(g) tasks entrusted by laws prescribed by the Pyidaungsu Hluttaw,
21. If there is a dispute as to whether a provision prescribed in a law is in conformity with the Constitution in hearing a case by a court, and the Constitutional Tribunal has not made any decision regarding the case, the court shall suspend its hearing and submit its views to the Constitutional Tribunal in accord with the procedures for its decision. The decision of the Constitutional Tribunal regarding the dispute shall apply all the cases.
22. The decision of the Constitutional Tribunal shall be final.
23. The following persons shall have the right to directly submit a case to the Constitutional Tribunal for its interpretation, decision, and stance:
(a) President;
(b) Speaker of the Pyidaungsu Hluttaw;
(c) Speaker of the Pyithu Hluttaw,
(d) Speaker of the Amyotha Hluttaw,
(e) Chief Justice;
(f) Chairman of Union Election Commission.
24. The following persons or bodies shall have the right to submit a case to the Constitutional Tribunal in accord with the procedures for its interpretation, decision and stance:
(a) Region or State Chief Minister;
(b) Speaker of the Region or State Hluttaw,
(c) Chairman of Leading Body of Self-Administered Areas.
(d) At least 10 percent of the members of the Pyithu Hluttaw or the Amyotha Hluttaw.
25. Formation and relations of the Constitutional Tribunal, and duties, rights and privileges of the chairman and members of the Constitutional Tribunal shall be prescribed by law.
26. The status of the chairman of the Constitutional Tribunal is designated to be equivalent to the status of a Vice-President, and a member, to the status of a Union minister in order to make reference in prescribing by law regarding the duties, rights and privileges of the chairman and members of the Constitutional Tribunal.
Mr Chairman,
Now, I would like to present separate suggestions of the delegate groups. The Shan State Kokang Democratic Party in its suggestion said, “As regards the para 6, we would like to give a suggestion. Myanmar is formed with Regions and States and self-administered areas where various national races reside. There are national races who are not skilled in Myanmar literature and language. Moreover, some areas of the nation are far away from the place where the National Archives is located. Hence, copies of the Constitution that are translated into the languages of various national races will surely be required.”
“So, we would like to make a suggestion that the government enact necessary law to keep the translated copies of the Constitution at the respective Regions, States and self-administered areas.”
To respond to this suggestion, I would say Myanmar language is common among the national races of the Union of Myanmar, so it has been designated as official language for long. The terms enumerated in the law are to be correct and exact, and I do not think it is easy to translate the terms of law into respective languages of national races, and especially it is more difficult to translate the provisions of a State constitution, and it calls for no mistakes in the process. If there is some mistakes, there will be some difference between the translated work and initial definition. It is needed to continue to use Myanmar language as official language, as practised previously.
I would say this suggestion will be recorded so that if need arises to translate the law into languages of national races in respective Regions or States, necessary measures can be taken under the supervisions of respective governments of respective Regions or States.
Mr chairman,
Independent Representatives-Elect Dr Hmu Htan of Thantlang Township Constituency in Chin State, U Aung Thein of Ywangan Township Constituency in Shan State and U Tun Kyaw of Namhsan Township Constituency in Shan State (North) from that Delegate Group of Representatives-Elect said, “Therefore, the points from No 1 to No 26 the Work Committee chairman explained at the NC plenary session held on 13 November 2006 should be adopted.
“I would also like to make a suggestion about a constitutional index. An index should be stated in the booklet of the State constitution in order that when need arises to refer sub-paras, paras and pages, the facts can be looked up in the booklet in a short time. The constitutions of some countries feature an index, but those of most countries do not feature an index. The former countries state an index in the end of the booklet of the State constitution. So, I would like to suggest that after the booklet of the State constitution is in circulation, it should feature a constitution index.
They added, “I have learnt that in order to achieve success in working in a systematic and smooth way, there need some methods such as
(1) implementation of tasks in accordance with policy guidelines,
(2) reviewing the weak points in doing so,
(3) assessing the reviews,
(4) evaluating the assessments,
(5) laying down better policy guidelines based on the findings. This aphorism is reasonable and useful at any times. In pursuing policy guidelines, it is required to regularly fund out weak points and strong points. It is also needed to assess the reviews to know as to whether achievement is made or not. Only then, will it be possible to know whether the assessments are effective. And it is required to constantly review the weak points and causes and effects of the remedies to lay down better plans and new guidelines. Now, most nations are practising such methods. So, in building a modern and developed nation in accordance with the upcoming State constitution, emphasis should be placed on reviewing, assessing the reviews, remedying and evaluating.”
Of the two suggestions, the first — to feature a constitution index, the 1974 constitution carries a constitution index. So, this suggestion will be put on record to be featured if necessary when respective bodies write a draft of the State constitution.
In relation to the second suggestion, it is in connection with the ongoing procedures being carried out in accordance with the existing law, and it is needed to continue to use the procedures in doing so. Therefore, in line with the suggestions of the majority of the delegates, the detailed basic principles:
1. This Constitution is the Basic Law of laws of the State.
2. Myanmar language is the official language.
3. The State fundamental principles are the guidelines to be followed by the legislative Hluttaws in enacting laws and interpreting provisions of the State Constitution and of other laws.
4. Interpretation of the preamble, articles, clauses, words and expressions contained in this Constitution shall be based only on Myanmar text.
5. Interpretation of the expressions of this Constitution should be referred to the existing Interpretation of Expressions Law.
6. A Myanmar manuscript of this Constitution shall be kept at the National Archives. The manuscript shall be conclusive evidence of the provisions of this Constitution.
7. In the interest of the State, the Union Government may permit— (a) Region or State government,
(b) a cooperative society, an organization or a person to run any of economic enterprises, which are prescribed to be operated solely by the Union Government, through a jointventure system with the Union Government or under agreements.
8. The Union of Myanmar shall honour all legitimate obligations arising out of any treaties or agreements which before the commencement of this Constitution were in force between the Government of Myanmar and the Government of any other State, provided that such other State honours any reciprocal obligations towards the Union of Myanmar.
9. (a) Any proceedings relating to contracts or liabilities which might have been brought against the Government of the Union of Myanmar before this Constitution comes into force, may be brought against the Union Government.
(b) The Union of Myanmar may sue and may be sued by the name of the Union of Myanmar.
10. The Constitutional Tribunal shall consist of nine members including a chairman. The President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall select three members each who meet the following qualifications from among Hluttaw members or non-Hluttaw members:
(a) person who has attained the age of 50 years;
(b) person who possesses qualifications set for a Pyithu Hluttaw, other than restriction on age,
(c) person who possesses qualifications set for the Chief Justice and a Supreme Court Justice, other than restriction on age;
(d) person who has political, administrative, economic and security outlooks.
(e) person who is loyal to the State and the people.
11. The list of three members each nominated by the President, the Pyithu Hluttaw Speaker and the Amyotha Hluttaw Speaker, and a member nominated for chairmanship of Constitutional Tribunal among the nine members shall be submitted to the Pyidaungsu Hluttaw for its approval.
12. The Pyidaungsu Hluttaw shall have no right to reject the persons nominated for members of the Constitutional Tribunal by the President unless it can prove the members disqualified.
13. The President may, in accord with the provisions of the State Constitution, have the right to nominate new members for the seats of Constitutional Tribunal that are still vacant due to failure to obtain agreement of the Pyidaungsu Hluttaw.
14. The President shall appoint the chairman and members of Constitutional Tribunal approved by the Pyidaungsu Hluttaw.
15. The term of the Constitutional Tribunal is five years, the same as that of the Pyidaungsu Hluttaw. However, the ongoing Constitutional Tribunal, on expiry of its term, shall continue to carry out its functions till the President forms a new Constitutional Tribunal under this Constitution.
16. A member of the Constitutional Tribunal:
(a) shall be deemed to have resigned from the Hluttaw concerned on the date of being appointed if he is a member of any Hluttaw.
(b) shall be deemed to have resigned from civil service in accord with civil service rules and regulations on the date of being appointed if he is a government employee.
(c) shall have no right to participate in activities of the political party concerned during tenure of membership starting from the date of being appointed if he is a member of a political party.
17. A member of the Constitutional Tribunal may have the right to submit his resignation to the President if he wishes to resign before expiry of his tenure due to a reason.
18. The President may appoint a new member in accord with the provisions of this Constitution if there is a vacancy in membership in the Constitutional Tribunal for a certain reason.
19. (a) A member of the Constitutional Tribunal can be blamed or impeached under any of the following reasons:
(1) treason;
(2) violation of any of the provisions of the Constitution;
(3) misbehaviour;
(4) incapability of discharging duties prescribed in the State Constitution for a member of the Constitutional Tribunal;
(5) inefficient discharge of duties;
(b) If need arises to blame or impeach a member of the Constitutional Tribunal, it shall do so under the provisions prescribed in this Constitution set to blame or impeach the Chief Justice or a Supreme Court Justice.
20. The functions of the Constitutional Tribunal are as follows:
(a) to interpret provisions of the Constitution,
(b) to scrutinize whether or not laws enacted by the Pyidaungsu Hluttaw, the Region Hluttaws and the State Hluttaws and Self- Administered Areas are in conformity with the Constitution,
(c) to scrutinize functions of executive authorities of Pyidaungsu, Regions, States and Self-Administered Areas are in conformity with the Constitution,
(d) to decide on disputes in connection with the Constitution between Pyidaungsu and regions, between Pyidaungsu and States, between Regions and States, among Regions, among States, and between Regions or States and Self-Administered Areas and among Self-Administered Areas themselves to perform other duties prescribed in the Constitution,
(e) to decide on disputes in connection with the rights and responsibilities of the Pyidaungsu and Regions; or States or Self-Administered Areas in implementing Union law by Regions, States or Self-Administered Areas,
(f) to scrutinize and decide on matters relating to Union territories informed by the President,
(g) tasks entrusted by laws prescribed by the Pyidaungsu Hluttaw,
21. If there is a dispute as to whether a provision prescribed in a law is in conformity with the Constitution in hearing a case by a court, and the Constitutional Tribunal has not made any decision regarding the case, the court shall suspend its hearing and submit its views to the Constitutional Tribunal in accord with the procedures for its decision. The decision of the Constitutional Tribunal regarding the dispute shall apply all the cases.
22. The decision of the Constitutional Tribunal shall be final.
23. The following persons shall have the right to directly submit a case to the Constitutional Tribunal for its interpretation, decision, and stance:
(a) President;
(b) Speaker of the Pyidaungsu Hluttaw;
(c) Speaker of the Pyithu Hluttaw,
(d) Speaker of the Amyotha Hluttaw,
(e) Chief Justice;
(f) Chairman of Union Election Commission.
24. The following persons or bodies shall have the right to submit a case to the Constitutional Tribunal in accord with the procedures for its interpretation, decision and stance:
(a) Region of State Chief Minister;
(b) Speaker of the Region or State Hluttaw,
(c) Chairman of Leading Body of Self-Administered Areas.
(d) At least 10 percent of the members of the Pyithu Hluttaw or the Amyotha Hluttaw.
25. Formation and relations of the Constitutional Tribunal, and duties, rights and privileges of the chairman and members of the Constitutional Tribunal shall be prescribed by law.
26. The status of the chairman of the Constitutional Tribunal is designated to be equivalent to the status of a Vice-President, and a member, to the status of a Union minister in order to make reference in prescribing by law regarding the duties, rights and privileges of the chairman and members of the Constitutional Tribunal.